Gladue and Sentencing

• Author: Jonathan Rudin
• Pages: 111-168

111

Gladue and

Sentencing

5

I. First Principles ........................................... 

II. Identity ................................................. 

III. Does Indigenous Ancestry Have to Be from Canada? ............ 

IV. Gladue Information ....................................... 

A. Gladue Reports ..................................... 

B. Other Sources of Gladue Information ................... 

V. Gladue Factors ........................................... 

VI. Presenting Gladue Information to the Court ................... 

VII. Anthony-Cook and Indigenous Oenders ...................... 

VIII. The Signicance of Lacasse ................................. 

IX. The Amended Section  .................................. 

X. Waiving Gladue .......................................... 

Best Practices ............................................ 

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112Indigenous People and the Criminal Justice System

I. First Principles

As courts have repeatedly said, Gladue1 is not a get-out-of-jail-free card.2 It is not

enough to say at sentencing, “Your Honour, my client is an Indigenous person; Gladue

and Ipeelee therefore apply” and then sit down and let nature and the Supreme Court

of Canada’s decisions take their course. At the same time, the Court in Ipeelee stressed

that it was a misinterpretation of Gladue to assume that sentences for Indigenous

and non-Indigenous oenders would be the same in the case of serious and violent

oences.3

Gladue and Ipeelee make clear that the overrepresentation of Indigenous people in

Canadian prisons is a crisis, and indeed it is now more than a crisis.4 The Supreme

Court has said that judges must look to alternatives to incarceration for Indigenous

oenders. Gladue considerations arise in every case involving an Indigenous oender,

and even when jail is inevitable, judges must always look to determine if the jail sen-

tence imposed is fit for the Indigenous oender.

In Ipeelee, the Supreme Court made clear that the direction in section 718.2(e) of

the Criminal Code5 that requires a judge to look at alternatives to incarceration “with

particular attention to the circumstances of Aboriginal oenders” is not an exception

to other sentencing principles; rather, it is completely consistent with the principle

of proportionality, which is the overarching principle of sentencing.6 Proportionality

takes into account two distinct concepts: the gravity of the oence and the moral

blameworthiness of the oender. It is with respect to the latter consideration that

section 718.2(e) focuses.

To meet the requirements of Gladue and Ipeelee, a judge must consider two issues:

first, the personal and background circumstances of the oender, and, second, some

of the sentencing options that might be relevant to the oender based on those cir-

cumstances. In looking at personal and background circumstances, the court will need

to know not only about those matters that are unique to the individual, but also about

systemic issues such as the dislocation of Indigenous communities, the intergenera-

tional impact of residential schools, and many other issues. How that information may

be gathered will be discussed later in this chapter.

1 R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679.

2 See e.g. R v Kakekagamick 2006 CanLII 28549 at para 34, 81 OR (3d) 664 [Kakekagamick II ].

3 R v Ipeelee, 2012 SCC 13 at paras 84-87 [Ipeelee].

4 Gladue, supra note 1 at para 64; Ipeelee, ibid at para 62.

5 RSC 1985, cC-46 [Code].

6 Ipeelee, supra note 3 at para 75.

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Chapter  Gladue and Sentencing 113

II. Identity

The application of Gladue and Ipeelee is not a matter of proving or disproving that the

person before the court is an Indigenous person. The determination that a person is

Indigenous triggers a dierent process, but it does not necessarily mandate a dierent

result. It is not as though “finding” that a person is Indigenous automatically changes

what would otherwise be a fit sentence.

As discussed in Chapter 3, identity is a challenging concept and for many a some-

what malleable one. Inviting courts to determine if someone is or is not an Indigenous

person after the individual has made that assertion is not just fraught with moral, eth-

ical, and legal concerns, all of which are heightened by the impacts of colonialism, but

most importantly is irrelevant to applying the law. In R v TAP, CrollJ of the Ontario

Superior Court of Justice succinctly summed up the law by stating that the process of

the Gladue assessment “must go beyond a technical assessment of bloodline.”7

One of the best discussions of this issue is in the decision of GeorgeJ of the Ontario

Court of Justice (as he then was) in R v Boyd.8 At sentencing, Mr Boyd asserted his

Indigenous identity but provided no further information. GeorgeJ stated:

I did not have the benefit of a pre-sentence report that explored Gladue factors. I did not

have the benefit of a Gladue report. I know only that he self identifies as an Aboriginal

person, because apparently, one of his parents has Aboriginal ancestry. I am told that

connection is with the “Oneida Band of the Blackfoot Tribe.” I have never heard of this.

What I do know is the Oneida people are members of the Iroquois Confederacy. They

are Haudenosaunee. I know also that the Blackfoot Nation is located traditionally in the

upper plains of the United States and in parts of Canada’s Prairie Provinces. There was

no elaboration. I was told nothing more than that.

I am therefore of the view, notwithstanding the self-identification, that the Gladue analy-

sis should play no important role in formulating a fit sentence for Mr. Boyd. Identifying

as an Aboriginal person does not amount to a sentencing discount.

The decision to not engage the analysis, in the face of an identification, is tricky, because

displacement is a key feature of Gladue, and who am I to serve any kind of gate-keeping

function in determining who is Aboriginal and who is not. Displacement, and lack of

connection to one’s Aboriginal community, is one of the sad and lasting legacies of the

residential school system, as is the current prevalence of First Nations children being

placed in the care of child welfare agencies. That is, loss of identity can play an important

role in contributing to criminal behavior, and is encompassed within a Gladue analysis.

7 2013 ONSC 797 at para 40.

8 2015 ONCJ 120.

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